Legal thoughts, since 2005.

First, the giveaway. Head on over to the MyCase blog to enter to win a free copy of the JuryPad app, compliments of the good folks at Bench&Bar, LLC. The JuryPad iPad app is designed to streamline the jury selection process by assisting lawyers during voir dire. Using this app you can create voir dire templates and then keep track of potential jurors’ demographics and voir dire responses using a customizable seating chart. Enter to win today!

Next, check out this great infographic that we created and published at the MyCase blog that is chock full of useful and interesting statistics about lawyers use of mobile law practice management tools. It offers lots of insight into how attorneys are communicating with their clients and managing their busy law practices while mobile and on the move.

This week's Daily Record column is entitled "New Hampshire on the ethics of lawyers using cloud computing."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

*****

New Hampshire on the ethics of lawyers using cloud computing

Cloud computing — it’s an idea that has finally come of age. What was once an unfamiliar and suspect concept is now becoming commonplace as it proliferates the business world. Not surprisingly then, more and more lawyers are taking advantage of the many benefits that cloud computing offers, including cost savings, flexibility, and agility.

As lawyers’ use of cloud computing increases, so too do the number of ethics decisions about lawyers’ use of cloud computing, the most recent of which was issued in February. In Ethics Committee Advisory Opinion #2012-13/4, the New Hampshire Bar Association Board of Governors addressed the ethics of the use of cloud computing in the practice of law.

The committee agreed with and adopted the conclusion reached by other U.S. jurisdictions that have addressed this issue, explaining that “(t)he consensus among states is that a lawyer may use cloud computing consistent with his or her ethical obligations. To date, every state bar association that has issued an opinion on using cloud computing has said that it is permissible, as long as the lawyer takes reasonable steps to ensure that sensitive client information remains confidential.”

Given the consensus amongst bar ethics committees regarding cloud computing, the New Hampshire Committee’s conclusion wasn’t surprising. But the opinion was an interesting one, made notable by the committee’s adept observations about new technologies and the realities of law practice.

First, the committee acknowledged that lawyers have always outsourced the management of confidential data to third parties: “As noted in NH Bar Ethics Op. 2011-12/5, ‘Lawyers regularly engage companies to provide support services. Banks hold client funds; telephone companies carry privileged communications; credit card companies facilitate the payment of bills; computer consultants maintain necessary technology.’ When engaging a cloud computing provider or an intermediary who engages such a provider, the responsibility rests with the lawyer to ensure that the work is performed in a manner consistent with the lawyer’s professional duties.”

Next, the committee wisely noted that lawyers have never been required to ensure absolute security when it comes to confidential client data, and lawyers’ use of cloud computing services does not trigger a higher standard of care: “It bears repeating that a lawyer’s duty is to take reasonable steps to protect confidential client information, not to become an expert in information technology. When it comes to the use of cloud computing, the Rules of Professional Conduct do not impose a strict liability standard. As one ethics committee observed, ‘Such a guarantee is impossible, and a lawyer can no more guarantee against unauthorized access to electronic information than he can guarantee that a burglar will not break into his file room, or that someone will not illegally intercept his mail or steal a fax.’”

I commend the New Hampshire Bar for issuing this forward thinking and enlightened opinion. As always, it is heartening to see a thoughtful decision about the use of emerging technologies in the practice of law, rather than a knee-jerk, Luddite conclusion based on fear and a lack of understanding.

Fortunately, when it comes to cloud computing, the majority of U.S. ethics committees have issued the latter rather than the former. For a full run down of the ethics decisions issued about cloud computing, see the American Bar Association’s handy comparative chart, which can be found online here.

This week's Daily Record column is entitled "A look at Android resources for lawyers."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

*****

A look at Android resources for lawyers

Lawyers love their mobile devices. In fact, as reported in the American Bar Association’s 2012 Legal Tech Survey, a whopping 89 percent of lawyers now use smart phones. And, not surprisingly, one of the most drastic increases in lawyers using mobile tools was the surge in the number of lawyers using tablets for law-related tasks. That percentage nearly doubled over the period of one year, increasing from 15 percent in 2011 to 33 percent in 2012.

But, much like the general population, lawyers’ smart phone and tablet choices are shifting over time. It used to be that most lawyers’ smart phone of choice was a BlackBerry, but no more. According to ABA Tech Survey, BlackBerry use by lawyers declined significantly over the past year, from 46 percent of smart phone users in 2011 to just 31 percent this year. And, most lawyers who made the switch from BlackBerry chose either the iPhone, which was used by 44 percent of respondents in 2012, or an Android phone, which was used by 16 percent.

But don’t discount Android devices — not yet. Android use is on the rise as reported by The New York Times just last week (“Android Devices Set to Overtake iPad in Market Share” March 13): “Shipments of tablets running the Google Android operating system will overtake the iPad this year for the first time, the research firm IDC has predicted … IPad shipments are expected to account for 46 percent of the tablet market in 2013, down from 51 percent last year, the research company said. The market share for devices running Android is expected to grow to 49 percent this year from 42 percent last year.”

So undoubtedly, the number of lawyers using Android devices will increase over the next year. But what’s an Android-toting lawyer to do in a world still dominated by iOS devices and where most information for lawyers about smart phones and tablets presumes the use of Apple devices?

Well have no fear, Android fans, there are quite a few resources available designed to help lawyers navigate the less charted Android waters.

First, there are a few helpful blogs. Let’s start with a legal blog devoted to lawyers who use Android devices: The Droid Lawyer (thedroidlawyer.com). At the Droid Lawyer, Oklahoma attorney Jeffrey Taylor regularly posts about Android apps of interest to attorneys and also provides tips and tricks for making the most of your Android devices. His blog is a must read for any lawyer who owns an Android tablet or smart phone.

Another very helpful blog is Future Lawyer (futurelawyer.typepad.com), which is published by Florida attorney and avid Android user Rick Georges. Although the blog’s primary focus is legal technology, Rick regularly discusses the use of Android devices in a law practice.

Finally, Law Technology Today, a blog run by the American Bar Association’s Law Practice Management Section, also discusses, among other legal technology topics, the use of Android devices by law firms, so it’s worth checking in to read the latest Android tips there as well (www.lawtechnologytoday.org/tag/android/).

And last but not least, if blogs don’t offer you enough Android-related information, there’s always the recently published book, “Android Apps in One Hour For Lawyers,” written by attorney Daniel J. Siegel (ABA 2013). This book covers a vast array of Android apps designed to help lawyers practice law using their Android devices.

However, some of you might not be ready to run out and buy the book just yet. If so, never fear. In the near future, I plan to write an article covering some of the more popular and useful Android apps for lawyers, so stay tuned!

This week's Daily Record column is entitled "Can lawyers ethically blog about their cases?"

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

*****

Can lawyers ethically blog about their cases?

When blogging first became popular years ago, lawyers were often reluctant to participate due to ethical concerns. Even today, that hesitancy remains despite the large scale adoption of blogging by lawyers and non-lawyers alike.

Hopefully, a recent Virginia decision,Horace Frazier Hunter v. Record No. 121472, handed down in February of this year, will quell some of the remaining concerns. According to the decision issued by the Virginia Supreme Court, not only can Virginia lawyers ethically blog about their cases, they can even list the names of their clients when doing so, as long as their blog includes an appropriate disclaimer.

In this case, the Virginia State Bar had determined that criminal defense attorney Horace Frazier Hunter had violated client confidences by discussing information about closed cases, including discussing favorable case outcomes and including the client’s name when doing so. Hunter appealed the decision, which ultimately reached the Virginia Supreme Court.

Among the issues considered by the court were whether his blog posts were considered to be commercial speech and whether he could ethically discuss public information about his clients without their consent.

First, the court addressed the issue of whether Hunter’s blog posts constituted commercial speech and thus were subject to regulation by the Virginia State Bar. The court concluded that the posts were commercial speech because, among other things: 1) Hunter admitted that his motivation for posting was, in part, economic; 2) the posts served as an advertisement since they highlighted favorable results obtained on behalf of clients; 3) Hunter referred to his lawyering skills in the vast majority of his posts; 4) the blog was part of his law firm’s website rather than a freestanding blog; and 5) the blog was not interactive since it did not permit comments.

Next, the court moved on to the issue of whether Hunter had violated client confidentiality by discussing the outcomes of closed cases and including client’s names in the blog posts. The court concluded that First Amendment protections applied since the cases discussed on the blog were closed: “It is settled that attorney speech about public information from cases is protected by the First Amendment, but it may be regulated if it poses a substantial likelihood of materially prejudicing a pending case.”

“The VSB argues that it can prohibit an attorney from repeating truthful information made in a public judicial proceeding even though others can disseminate this information because an attorney repeating it could inhibit clients from freely communicating with their attorneys or because it would undermine public confidence in the legal profession,” the court explained.

“Such concerns, however, are unsupported by the evidence. To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections. In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.”

However, although the court held that Hunter’s posts were protected by the First Amendment, it also concluded that the bar could regulate the speech and require disclaimers, since the speech had the potential to be misleading. The court reversed and remanded the case for additional considerations regarding the issue of appropriate disclaimers.

All in all, I think this was a good decision, with one exception. I disagree with the court’s assertion that the failure to allow commenting on blog posts is evidence that a blog is intended for commercial purposes. That is simply not the case.

Permitting comments on blogs has fallen out of favor among many bloggers, myself included, due to the massive amounts of spam comments that are posted. So I, like many other bloggers, have simply decided to no longer permit comments in order to avoid spending unnecessary amounts of time moderating comments from spambots, marketers and self-promoters.

But, aside from that one area of disagreement, this was, overall, a good decision. My hope is that decisions like this one will have the effect of encouraging lawyers to learn more about blogging and other opportunities to interact online.

This week's Daily Record column is entitled "Another NY decision on social media evidence discovery."

A pdf of the article can be found and my past Daily Record articles can be accessed here.

*****

Another NY decision on social media evidence discovery

Social media evidence is a hot topic these days, as lawyers are now realizing that there is a wealth of information available online that can be used to prosecute or defend legal claims. As attorneys increasingly seek to obtain access to the social media accounts of litigants, more cases are arising which address the discoverability of this type of evidence.

New York courts are no exception to this trend, and in January, yet another court handed down a decision which addressed a motion to compel the production of social media information.

In Fawcett v. Altieri, 2013 N.Y. Slip Op. 23010, the Richmond County Supreme Court addressed this issue of the discoverability of social media records. In this case, the mother of an infant plaintiff brought a personal injury lawsuit on her son’s behalf against a high school and the parents of another student.

The claims arose from an incident where her son was allegedly injured during an altercation with another student that occurred on school grounds. During the discovery phase of litigation, the defendants brought a motion to compel the production of the infant plaintiff’s social media data.

Prior to addressing the facts of the case on appeal, the court first reviewed the relevant case law and then set forth the appropriate standard: “A survey of cases dealing with the production of social media accounts, in both the criminal and civil contexts, reveal a two prong analysis before courts compel the production of the contents of social media accounts.

This inquiry requires a determination by the court as to whether the content contained on/in a social media account is “material and necessary;” and then a balancing test as to whether the production of this content would result in a violation of the account holder’s privacy rights.”

Next, the court differentiated between public and private social media postings, and elaborated on the necessary showing that a party seeking to compel the records must make: “Information posted in open on social media accounts are freely discoverable and do not require court orders to disclose them … In order to obtain a closed or private social media account by a court order for the subscriber to execute an authorization for their release, the adversary must show with some credible facts that the adversary subscriber has posted information or photographs that are relevant to the facts of the case at hand.”

Importantly, the court emphasized that overly broad requests were improper, in part because of the nature of the information often shared via social media: “The courts should not accommodate blanket searches for any kind of information or photos to impeach a person’s character, which may be embarrassing, but are irrelevant to the facts of the case at hand.”

Applying those standards to the case at hand, the court concluded that the defendants had failed to make the necessary showing. “This is a civil tort matter of a minor assault that should have a good faith basis other than supposition, hope or speculation that some comment was made that may be relevant to the case at hand.” the court explained. As such, the court denied the motion to compel, since it was overly broad.

This case, like other recent New York cases, curtails unlimited access to all forms of social media data and treats this type of evidence no differently than other more traditional types of evidence, such as letters, diaries or recordings. Fishing expeditions should be discouraged and all motions to compel information shared privately, whether on social media or otherwise, should have a credible basis.

This decision, which upholds that standard, is further proof that New York’s courts are doing a good job of applying traditional evidentiary concepts to the realities of life in the 21st century.

disclaimer

This site is intended purely as a resource guide for educational and informational purposes and is not intended to provide specific legal advice. This site should not be used as a substitute for competent legal advice from a professional attorney in your state. The use and receipt of the information offered on this site is not intended to create, nor does it create, an attorney-client relationship.

Please feel free to contact me via e-mail or otherwise. However, please be advised that an attorney-client relationship is not created through the act of sending electronic mail to me.

The comments on this blog are solely the opinions of the individuals leaving them. In no way does Legal Antics or Nicole L. Black endorse, condone, agree with, sponsor, etc. these comments.

Further, any information provided on this blog or in the comments should be taken at your own risk.